Adler on The Dignity of Sex

Libby Adler, Northeastern University School of Law, has posted a new article, The Dignity of Sex. It is forthcoming in the UCLA Women's Law Journal. Here's the abstract:

Dignity, for a long time, has stood for at least two broad ideas. The first idea is that all human beings have dignity innately. This idea has a theological incarnation, according to which human beings have dignity because they were created in the image of God, as well as a secular incarnation, according to which human beings have dignity because they have rationality. Dignity in its second usage derives from social rank. It distinguishes rather than equalizes us. This article reviews the concept of dignity historically, examines contemporary constitutional cases regarding sex from a few different national jurisdictions, and urges that dignity poses legal hazards to gaining constitutional protection for a wide array of sexual practices. It argues that while aristocratic dignity might appear outdated in modern legal systems with an egalitarian ethos, it is still very much alive. While universalist and aristocratic dignity appear at first blush to stand in stark opposition to one another, the former analytically relies on the latter - that is, an assertion of egalitarian dignity is one side of a coin, the other side of which is necessarily degradation of something excluded and therefore the establishment of a hierarchy. When universalist dignity is invoked, therefore, it is worth investigating the basis for the assertion of dignity, what - lacking that basis - is excluded, and consequently what hierarchy has been produced or maintained. A key basis that appears across a handful of national jurisdictions for dignifying constitutionally protected sexual practices is the nature of the relationship in which the sex occurs, producing a hierarchy between sex that occurs in the context of a normatively privileged relationship and sex that occurs outside of that context. This paper highlights the under-acknowledged importance of relationship in constitutional law governing sex and proposes and skeptically evaluates reasons for this preoccupation. It also examines dignity's connection to rationality, and situates that connection historically, devoting particular attention to developments that occurred at the time of the Enlightenment and after World War II, and finds that the interplay among dignity, rationality and sex presents a formidable obstacle to achieving broad constitutional protection for sexual practices.